Valley Psychological, P.C. v. Gov't Emps. Ins. Co.

• Decision Date: 04 April 2013
• Citation: 962 N.Y.S.2d 506,105 A.D.3d 1110,2013 N.Y. Slip Op. 02302
• Parties: VALLEY PSYCHOLOGICAL, P.C., Respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Also Known as GEICO, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1110

962 N.Y.S.2d 506

2013 N.Y. Slip Op. 02302

VALLEY PSYCHOLOGICAL, P.C., Respondent,

v.GOVERNMENT EMPLOYEES INSURANCE COMPANY, Also Known as GEICO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 4, 2013.

Law Office of Brian D. Richardson, Albany (James D. Taylor of counsel), for appellant.

Law Offices of Craig Meyerson, Latham (Craig Meyerson of counsel), for respondent.

Before: PETERS, P.J., SPAIN, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeals (1) from an order of the Supreme Court (Platkin, J.), entered February 1, 2012 in Albany County, which, among other things, granted plaintiff's motion for a turnover order, and (2) from an order of said court, entered March 6, 2012 in Albany County, which ordered defendant to pay $5,254.02 to satisfy a judgment in favor of plaintiff.

This appeal has its genesis in defendant's attempt to recoup $825.55 to which it claims entitlement as a credit against a judgment entered in favor of plaintiff. By way of background, plaintiff provided psychological services to certain of defendant's insureds who had suffered injuries arising out of no-fault automobile accidents and, in May 2009, plaintiff commenced this action against defendant seeking reimbursement for those services. Following joinder of issue, various motions ensued and, in February 2011, Supreme Court, among other things, granted plaintiff partial summary judgment and entered a judgment in favor of plaintiff for $80,187.27, plus interest, counsel fees and costs. There is no indication in the record that defendant appealed from the order awarding partial summary judgment to plaintiff, moved for reconsideration thereof or sought to vacate the resulting judgment. Instead, defendant only partially satisfied the judgment, contending that it was entitled to various credits against the sum due and owing.

Faced with defendant's refusal to tender the full amount due, plaintiff thereafter moved for—insofar as is relevant here—a turnover order pursuant to CPLR 5225 seeking to recover the outstanding balance. Defendant opposed the requested relief, contending that it had paid the judgment in full, and submitted checks purportedly reflecting payments made on the outstanding claims. By order entered February 1, 2012, Supreme Court granted plaintiff the requested relief, suggesting that defendant's proffer of the canceled checks was untimely and, in any event, finding such proof to be insufficient to demonstrate full satisfaction of the judgment. Thereafter, by order entered March 6, 2012, Supreme Court awarded plaintiff $5,254.02, representing the outstanding amount due and owing in full satisfaction of the prior judgment. Defendant now appeals, contending that it is entitled to a credit of $825.55 for payments previously made.¹

We affirm. Initially, we reject defendant's assertion that Supreme Court erred in summarily granting plaintiff's application. A summary judgment analysis may be employed where, as here, a party is seeking a turnover order pursuant to CPLR 5225(a) ( cf. Matter of Centerpointe Corporate Park Partnership 350 v. MONY, 96 A.D.3d 1401, 1402, 946 N.Y.S.2d 354 [2012],lv. dismissed19 N.Y.3d 1097, 955 N.Y.S.2d 548, 979 N.E.2d 808 [2012];Matter of TNT Petroleum, Inc. v. Sea Petroleum, Inc., 72 A.D.3d 694, 695, 897 N.Y.S.2d 646 [2010];Estate of Giustino v. Estate of DelPizzo, 21 A.D.3d 523, 523, 799 N.Y.S.2d 909 [2005] ), and plaintiff made a prima facie showing that—at that point in time—the underlying judgment had not been paid in full. Although defendant tendered various canceled checks in opposition to plaintiff's application and the record indeed reflects a history of partial payments, we agree with Supreme Court that defendant's submissions in this regard failed to correlate with the dates or amounts of the outstanding claims at issue and, for that reason, were insufficient to raise a question of fact as to its satisfaction of the judgment. Accordingly, Supreme Court properly granted plaintiff's request for a turnover order and directed that defendant pay plai...